THIRD DIVISION

[G.R. No. 145391. August 26, 2002]

AVELINO CASUPANAN and ROBERTO CAPITULO, petitioners, vs.

MARIO LLAVORE LAROYA, respondent.DECISIONCARPIO, J.:

The CaseThis is a petition for review on certiorari to set aside the Resolution datedDecember 28, 1999 dismissing the petition for certiorari and the Resolution datedAugust 24, 2000 denying the motion for reconsideration, both issued by the RegionalTrial Court of Capas, Tarlac, Branch 66, in Special Civil Action No. 17-C (99).[1]

[2]

The FactsTwo vehicles, one driven by respondent Mario Llavore Laroya (Laroya for brevity)and the other owned by petitioner Roberto Capitulo (Capitulo for brevity) and driven bypetitioner Avelino Casupanan (Casupanan for brevity), figured in an accident. As aresult, two cases were filed with the Municipal Circuit Trial Court (MCTC for brevity) ofCapas, Tarlac. Laroya filed a criminal case against Casupanan for reckless imprudenceresulting in damage to property, docketed as Criminal Case No. 002-99. On the otherhand, Casupanan and Capitulo filed a civil case against Laroya for quasi-delict,docketed as Civil Case No. 2089.When the civil case was filed, the criminal case was then at its preliminaryinvestigation stage. Laroya, defendant in the civil case, filed a motion to dismiss the civilcase on the ground of forum-shopping considering the pendency of the criminal case.The MCTC granted the motion in the Order of March 26, 1999 and dismissed the civilcase.On Motion for Reconsideration, Casupanan and Capitulo insisted that the civil caseis a separate civil action which can proceed independently of the criminal case. TheMCTC denied the motion for reconsideration in the Order of May 7, 1999. Casupananand Capitulo filed a petition for certiorari under Rule 65 before the Regional Trial Court(Capas RTC for brevity) of Capas, Tarlac, Branch 66, assailing the MCTCs Order ofdismissal.[3]

The Trial Courts Ruling

The Capas RTC rendered judgment on December 28, 1999 dismissing the petitionfor certiorari for lack of merit. The Capas RTC ruled that the order of dismissal issuedby the MCTC is a final order which disposes of the case and therefore the properremedy should have been an appeal. The Capas RTC further held that a special civilaction for certiorari is not a substitute for a lost appeal. Finally, the Capas RTC declaredthat even on the premise that the MCTC erred in dismissing the civil case, such error isa pure error of judgment and not an abuse of discretion.Casupanan and Capitulo filed a Motion for Reconsideration but the Capas RTCdenied the same in the Resolution of August 24, 2000.Hence, this petition.The IssueThe petition premises the legal issue in this wise:

In a certain vehicular accident involving two parties, each one of them may think andbelieve that the accident was caused by the fault of the other. x x x [T]he first party,believing himself to be the aggrieved party, opted to file a criminal case for recklessimprudence against the second party. On the other hand, the second party, togetherwith his operator, believing themselves to be the real aggrieved parties, opted in turnto file a civil case for quasi-delict against the first party who is the very privatecomplainant in the criminal case.[4]

Thus, the issue raised is whether an accused in a pending criminal case forreckless imprudence can validly file, simultaneously and independently, a separate civilaction for quasi-delict against the private complainant in the criminal case.The Courts RulingCasupanan and Capitulo assert that Civil Case No. 2089, which the MCTCdismissed on the ground of forum-shopping, constitutes a counterclaim in the criminalcase. Casupanan and Capitulo argue that if the accused in a criminal case has acounterclaim against the private complainant, he may file the counterclaim in a separatecivil action at the proper time. They contend that an action on quasi-delict is differentfrom an action resulting from the crime of reckless imprudence, and an accused in acriminal case can be an aggrieved party in a civil case arising from the same incident.They maintain that under Articles 31 and 2176 of the Civil Code, the civil case canproceed independently of the criminal action. Finally, they point out that Casupananwas not the only one who filed the independent civil action based on quasi-delict but

also Capitulo, the owner-operator of the vehicle, who was not a party in the criminalcase.In his Comment, Laroya claims that the petition is fatally defective as it does notstate the real antecedents. Laroya further alleges that Casupanan and Capitulo forfeitedtheir right to question the order of dismissal when they failed to avail of the properremedy of appeal. Laroya argues that there is no question of law to be resolved as theorder of dismissal is already final and a petition for certiorari is not a substitute for alapsed appeal.In their Reply, Casupanan and Capitulo contend that the petition raises the legalquestion of whether there is forum-shopping since they filed only one action - theindependent civil action for quasi-delict against Laroya.Nature of the Order of DismissalThe MCTC dismissed the civil action for quasi-delict on the ground of forumshopping under Supreme Court Administrative Circular No. 04-94. The MCTC did notstate in its order of dismissal that the dismissal was with prejudice. Under theAdministrative Circular, the order of dismissal is without prejudice to refiling thecomplaint, unless the order of dismissal expressly states it is with prejudice. Absent adeclaration that the dismissal is with prejudice, the same is deemed withoutprejudice. Thus, the MCTCs dismissal, being silent on the matter, is adismissal without prejudice.[5]

[6]

Section 1 of Rule 41 provides that an order dismissing an action without prejudice

is not appealable. The remedy of the aggrieved party is to file a special civil actionunder Rule 65. Section 1 of Rule 41 expressly states that where the judgment or finalorder is not appealable, the aggrieved party may file an appropriate special civil actionunder Rule 65. Clearly, the Capas RTCs order dismissing the petition for certiorari, onthe ground that the proper remedy is an ordinary appeal, is erroneous.[7]

Forum-ShoppingThe essence of forum-shopping is the filing of multiple suits involving the sameparties for the same cause of action, either simultaneously or successively, to secure afavorable judgment. Forum-shopping is present when in the two or more casespending, there is identity of parties, rights of action and reliefs sought. However, thereis no forum-shopping in the instant case because the law and the rules expressly allowthe filing of a separate civil action which can proceed independently of the criminalaction.[8]

[9]

Laroya filed the criminal case for reckless imprudence resulting in damage toproperty based on the Revised Penal Code while Casupanan and Capitulo filed the civilaction for damages based on Article 2176 of the Civil Code. Although these two actionsarose from the same act or omission, they have different causes of action. The criminalcase is based on culpa criminal punishable under the Revised Penal Code while thecivil case is based on culpa aquiliana actionable under Articles 2176 and 2177 of theCivil Code. These articles on culpa aquiliana read:

Art. 2176. Whoever by act or omission causes damage to another, there being faultor negligence, is obliged to pay for the damage done. Such fault or negligence, if thereis no pre-existing contractual relation between the parties, is called a quasi-delict andis governed by the provisions of this Chapter.Art. 2177. Responsibility for fault or negligence under the preceding article isentirely separate and distinct from the civil liability arising from negligence under thePenal Code. But the plaintiff cannot recover damages twice for the same act oromission of the defendant.Any aggrieved person can invoke these articles provided he proves, bypreponderance of evidence, that he has suffered damage because of the fault ornegligence of another. Either the private complainant or the accused can file a separatecivil action under these articles. There is nothing in the law or rules that state only theprivate complainant in a criminal case may invoke these articles.Moreover, paragraph 6, Section 1, Rule 111 of the 2000 Rules on CriminalProcedure (2000 Rules for brevity) expressly requires the accused to litigate hiscounterclaim in a separate civil action, to wit:

SECTION 1. Institution of criminal and civil actions. (a) x x x.

No counterclaim, cross-claim or third-party complaint may be filed by the accused inthe criminal case, but any cause of action which could have been the subject thereofmay be litigated in a separate civil action. (Emphasis supplied)Since the present Rules require the accused in a criminal action to file his counterclaimin a separate civil action, there can be no forum-shopping if the accused files suchseparate civil action.Filing of a separate civil actionSection 1, Rule 111 of the 1985 Rules on Criminal Procedure (1985 Rules forbrevity), as amended in 1988, allowed the filing of a separate civil action independentlyof the criminal action provided the offended party reserved the right to file such civilaction. Unless the offended party reserved the civil action before the presentation of theevidence for the prosecution, all civil actions arising from the same act or omission weredeemed impliedly instituted in the criminal case. These civil actions referred to therecovery of civil liability ex-delicto, the recovery of damages for quasi-delict, and therecovery of damages for violation of Articles 32, 33 and 34 of the Civil Code on HumanRelations.Thus, to file a separate and independent civil action for quasi-delict under the 1985Rules, the offended party had to reserve in the criminal action the right to bring suchaction. Otherwise, such civil action was deemed impliedly instituted in the criminalaction. Section 1, Rule 111 of the 1985 Rules provided as follows:

Section 1. Institution of criminal and civil actions. When a criminal action is

instituted, the civil action for the recovery of civil liability is impliedly instituted withthe criminal action, unless the offended party waives the action, reserves his right toinstitute it separately, or institutes the civil action prior to the criminal action.Such civil action includes recovery of indemnity under the Revised Penal Code, anddamages under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippinesarising from the same act or omission of the accused.A waiver of any of the civil actions extinguishes the others. The institution of, or thereservation of the right to file, any of said civil actions separately waives the others.The reservation of the right to institute the separate civil actions shall be made beforethe prosecution starts to present its evidence and under circumstances affording theoffended party a reasonable opportunity to make such reservation.In no case may the offended party recover damages twice for the same act or omissionof the accused.x x x. (Emphasis supplied)Section 1, Rule 111 of the 1985 Rules was amended on December 1, 2000 and nowprovides as follows:

SECTION 1. Institution of criminal and civil actions. (a) When a criminal action isinstituted, the civil action for the recovery of civil liability arising from the offensecharged shall be deemed instituted with the criminal action unless the offended partywaives the civil action, reserves the right to institute it separately or institutes the civilaction prior to the criminal action.The reservation of the right to institute separately the civil action shall be made beforethe prosecution starts presenting its evidence and under circumstances affording theoffended party a reasonable opportunity to make such reservation.xxx(b)

xxx

Where the civil action has been filed separately and trial thereof has not yetcommenced, it may be consolidated with the criminal action upon application with thecourt trying the latter case. If the application is granted, the trial of both actions shallproceed in accordance with section 2 of this rule governing consolidation of the civiland criminal actions. (Emphasis supplied)

Under Section 1 of the present Rule 111, what is deemed instituted with thecriminal action is only the action to recover civil liability arising from the crime or exdelicto. All the other civil actions under Articles 32, 33, 34 and 2176 of the Civil Codeare no longer deemed instituted, and may be filed separately and prosecutedindependently even without any reservation in the criminal action. The failure to make areservation in the criminal action is not a waiver of the right to file a separate andindependent civil action based on these articles of the Civil Code. The prescriptiveperiod on the civil actions based on these articles of the Civil Code continues to runeven with the filing of the criminal action. Verily, the civil actions based on these articlesof the Civil Code are separate, distinct and independent of the civil action deemedinstituted in the criminal action.[10]

Under the present Rule 111, the offended party is still given the option to file aseparate civil action to recover civil liability ex-delicto by reserving such right in thecriminal action before the prosecution presents its evidence. Also, the offended party isdeemed to make such reservation if he files a separate civil action before filing thecriminal action. If the civil action to recover civil liability ex-delicto is filed separately butits trial has not yet commenced, the civil action may be consolidated with the criminalaction. The consolidation under this Rule does not apply to separate civil actionsarising from the same act or omission filed under Articles 32, 33, 34 and 2176 of theCivil Code.[11]

Suspension of the Separate Civil Action

Under Section 2, Rule 111 of the amended 1985 Rules, a separate civil action, ifreserved in the criminal action, could not be filed until after final judgment was renderedin the criminal action. If the separate civil action was filed before the commencement ofthe criminal action, the civil action, if still pending, was suspended upon the filing of thecriminal action until final judgment was rendered in the criminal action. This rule appliedonly to the separate civil action filed to recover liability ex-delicto. The rule did not applyto independent civil actions based on Articles 32, 33, 34 and 2176 of the Civil Code,which could proceed independently regardless of the filing of the criminal action.The amended provision of Section 2, Rule 111 of the 2000 Rules continues thisprocedure, to wit:

SEC. 2. When separate civil action is suspended. After the criminal action has beencommenced, the separate civil action arising therefrom cannot be instituted until finaljudgment has been entered in the criminal action.If the criminal action is filed after the said civil action has already been instituted,the latter shall be suspended in whatever stage it may be found before judgment onthe merits. The suspension shall last until final judgment is rendered in thecriminal action. Nevertheless, before judgment on the merits is rendered in the civilaction, the same may, upon motion of the offended party, be consolidated with thecriminal action in the court trying the criminal action. In case of consolidation, theevidence already adduced in the civil action shall be deemed automatically

reproduced in the criminal action without prejudice to the right of the prosecution tocross-examine the witnesses presented by the offended party in the criminal case andof the parties to present additional evidence. The consolidated criminal and civilactions shall be tried and decided jointly.During the pendency of the criminal action, the running of the period of prescriptionof the civil action which cannot be instituted separately or whose proceeding has beensuspended shall be tolled.x x x. (Emphasis supplied)Thus, Section 2, Rule 111 of the present Rules did not change the rule that the separatecivil action, filed to recover damages ex-delicto, is suspended upon the filing of thecriminal action. Section 2 of the present Rule 111 also prohibits the filing, aftercommencement of the criminal action, of a separate civil action to recover damages exdelicto.When civil action may proceed independentlyThe crucial question now is whether Casupanan and Capitulo, who are not theoffended parties in the criminal case, can file a separate civil action against the offendedparty in the criminal case. Section 3, Rule 111 of the 2000 Rules provides as follows:

SEC 3. When civil action may proceed independently. - In the cases provided inArticles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independentcivil action may be brought by the offendedparty. It shall proceed independently ofthe criminal action and shall require only a preponderance of evidence. In no case,however, may the offended party recover damages twice for the same act or omissioncharged in the criminal action. (Emphasis supplied)Section 3 of the present Rule 111, like its counterpart in the amended 1985 Rules,expressly allows the offended party to bring an independent civil action under Articles32, 33, 34 and 2176 of the Civil Code. As stated in Section 3 of the present Rule 111,this civil action shall proceed independently of the criminal action and shall require onlya preponderance of evidence. In no case, however, may the offended party recoverdamages twice for the same act or omission charged in the criminal action.There is no question that the offended party in the criminal action can file anindependent civil action for quasi-delict against the accused. Section 3 of the presentRule 111 expressly states that the offended party may bring such an action but theoffended party may not recover damages twice for the same act or omission chargedin the criminal action. Clearly, Section 3 of Rule 111 refers to the offended party in thecriminal action, not to the accused.Casupanan and Capitulo, however, invoke the ruling in Cabaero vs.Cantos where the Court held that the accused therein could validly institute a separatecivil action for quasi-delict against the private complainant in the criminal[12]

case. In Cabaero, the accused in the criminal case filed his Answer with Counterclaimfor malicious prosecution. At that time the Court noted the absence of clear-cut rulesgoverning the prosecution on impliedly instituted civil actions and the necessaryconsequences and implications thereof. Thus, the Court ruled that the trial courtshould confine itself to the criminal aspect of the case and disregard any counterclaimfor civil liability. The Court further ruled that the accused may file a separate civil caseagainst the offended party after the criminal case is terminated and/or in accordancewith the new Rules which may be promulgated. The Court explained that a crossclaim, counterclaim or third-party complaint on the civil aspect will only unnecessarilycomplicate the proceedings and delay the resolution of the criminal case.Paragraph 6, Section 1 of the present Rule 111 was incorporated in the 2000 Rulesprecisely to address the lacuna mentioned in Cabaero. Under this provision, theaccused is barred from filing a counterclaim, cross-claim or third-party complaint in thecriminal case. However, the same provision states that any cause of action whichcould have been the subject (of the counterclaim, cross-claim or third-party complaint)may be litigated in a separate civil action. The present Rule 111 mandates the accusedto file his counterclaim in a separate civil action which shall proceed independently ofthe criminal action, even as the civil action of the offended party is litigated in thecriminal action.ConclusionUnder Section 1 of the present Rule 111, the independent civil action in Articles 32,33, 34 and 2176 of the Civil Code is not deemed instituted with the criminal action butmay be filed separately by the offended party even without reservation. Thecommencement of the criminal action does not suspend the prosecution of theindependent civil action under these articles of the Civil Code. The suspension inSection 2 of the present Rule 111 refers only to the civil action arising from the crime, ifsuch civil action is reserved or filed before the commencement of the criminal action.Thus, the offended party can file two separate suits for the same act oromission. The first a criminal case where the civil action to recover civil liability exdelicto is deemed instituted, and the other a civil case for quasi-delict - without violatingthe rule on non-forum shopping. The two cases can proceed simultaneously andindependently of each other. The commencement or prosecution of the criminal actionwill not suspend the civil action for quasi-delict. The only limitation is that the offendedparty cannot recover damages twice for the same act or omission of the defendant. Inmost cases, the offended party will have no reason to file a second civil action since hecannot recover damages twice for the same act or omission of the accused. In someinstances, the accused may be insolvent, necessitating the filing of another caseagainst his employer or guardians.Similarly, the accused can file a civil action for quasi-delict for the same act oromission he is accused of in the criminal case. This is expressly allowed in paragraph6, Section 1 of the present Rule 111 which states that the counterclaim of the accusedmay be litigated in a separate civil action. This is only fair for two reasons. First,the accused is prohibited from setting up any counterclaim in the civil aspect that isdeemed instituted in the criminal case. The accused is therefore forced to litigate

separately his counterclaim against the offended party. If the accused does not file aseparate civil action for quasi-delict, the prescriptive period may set in since the periodcontinues to run until the civil action for quasi-delictis filed.Second, the accused, who is presumed innocent, has a right to invoke Article 2177of the Civil Code, in the same way that the offended party can avail of this remedywhich is independent of the criminal action. To disallow the accused from filing aseparate civil action for quasi-delict, while refusing to recognize his counterclaim in thecriminal case, is to deny him due process of law, access to the courts, and equalprotection of the law.Thus, the civil action based on quasi-delict filed separately by Casupanan andCapitulo is proper. The order of dismissal by the MCTC of Civil Case No. 2089 on theground of forum-shopping is erroneous.We make this ruling aware of the possibility that the decision of the trial court in thecriminal case may vary with the decision of the trial court in the independent civilaction. This possibility has always been recognized ever since the Civil Codeintroduced in 1950 the concept of an independent civil action under Articles 32, 33, 34and 2176 of the Code. But the law itself, in Article 31 of the Code, expressly providesthat the independent civil action may proceed independently of the criminalproceedings and regardless of the result of the latter. In Azucena vs. Potenciano,the Court declared:[13]

x x x. There can indeed be no other logical conclusion than this, for to subordinatethe civil action contemplated in the said articles to the result of the criminalprosecution whether it be conviction or acquittal would render meaningless theindependent character of the civil action and the clear injunction in Article 31 that thisaction 'may proceed independently of the criminal proceedings and regardless of theresult of the latter.More than half a century has passed since the Civil Code introduced the concept ofa civil action separate and independent from the criminal action although arising fromthe same act or omission. The Court, however, has yet to encounter a case ofconflicting and irreconcilable decisions of trial courts, one hearing the criminal case andthe other the civil action forquasi-delict. The fear of conflicting and irreconcilabledecisions may be more apparent than real. In any event, there are sufficient remediesunder the Rules of Court to deal with such remote possibilities.One final point. The Revised Rules on Criminal Procedure took effect onDecember 1, 2000 while the MCTC issued the order of dismissal on December 28,1999 or before the amendment of the rules. The Revised Rules on Criminal Proceduremust be given retroactive effect considering the well-settled rule that -

x x x statutes regulating the procedure of the court will be construed as applicable to

actions pending and undetermined at the time of their passage. Procedural laws areretroactive in that sense and to that extent.[14]

WHEREFORE, the petition for review on certiorari is hereby GRANTED. The

Sto. Domingo-David vs. Guerrero, 296 SCRA 277 (1998).

SEC. 9. Applicability of Rule 41. The other provisions of Rule 41 shall apply to appeals provided forherein insofar as they are not inconsistent with or may serve to supplement the provisions of this Rule.[8]

Melo vs. Court of Appeals, 318 SCRA 94 (1999).

Section 1 of Rule 31, however, allows consolidation, in the discretion of the trial court, of actionsinvolving common questions of law or fact pending before the same court (Cojuangco, Jr. vs. Court ofAppeals (203 SCRA 619 [1991]), or pending even in different branches of the same regional trial court ifone of the cases has not been partially tried (Raymundo vs. Felipe, 42 SCRA 615 [1971]).[11]